Decided on August 04,1983

Nitaben Appellant


V.V.BEDARKAR - (1.) The point involved in this appeal is a very important and hotly contested one as to whether a Hindu who married according to Hindu rites in India can claim that the provisions of Hindu Marriage Act are not applicable to him as he (as the husband claims here) is not domicile of India ? This is the main question and other questions which are raised will be discussed during the course of the judgment.
(2.) The facts of the case are that Nitaben (Appellant in First Appeal no. 278 of 1982) and respondent no. 1 Dhirendra Chandrakant Shukla were married in India according to Hindu rites on 22-6-1977. Thereafter the appellant-wife was taken to Nairobi in Kenya where respondent no. 1 husband was residing. There she gave birth to a male child who is named Manish . It is the allegation of the appellant-wife that she was not treated properly but was cruelly treated. Then she came back to India with her uncle-in-law and informed her parents about the treatment metted out to her and that she did not want to go to Nairobi at her husbands place. It was also known that prior to this marriage respondent no. 1 had married twice. After the appellant- wife came back to India she filed Hindu Marriage Petition no. 88 of 1979 foredecree of divorce and in the alternative for a decree of judicial separation against her husband-respondent no. 1 on the ground of cruelty. This petition was filed on 31-3-1979. thereafter amendment was carried out as per the order of the Court on 7-4-1980 wherein relief was added for a declaration that the marriage of appellant-wife (hereinafter referred to as the petitioner) with respondent no. 1 is null and void inasmuch as respondent no. 1 had a spouse living at the time of the marriage with the petitioner.
(3.) The unamended petition was replied to by the respondent no. 1- husband by written statement Ex- 6. In the said written statement the allegations made by the petitioner-wife are denied. But a specific averment is made that the petitioner-wife and the respondent-husband both are Hindu by religion and they are Brahmins. It is further averred that respondent-husband is not a citizen of India nor domicile of India. It was averred that he was born at Nairobi in Republic of Kenya where his father though a British subject and citizen of United Kingdom Colonies was residing and was a domicile of Kenya. The respondent- husband was never a domicile of India nor national thereof and that he was permanently residing and doing business at Nairobi in Kenya. It is alleged that the Act applies to Hindus who are domiciled within the territories to which the Act extends and to those who are outside the State territories. Therefore it was averred that it means that all Hindus domiciled in India whether they reside in India or abroad are governed by the provisions of the Act. The respondent-husband is not domiciled in India but is domiciled in the territories of Kenya and is permanently residing in Kenya and doing his business and has his permanent residence in the city of Nairobi (Kenya). Therefore the Act is not applicable to him so far as marital relations are concerned. Then it is averred that assuming without admitting that the petitioner- wife is domiciled in India but as the respondent-husband is not domiciled in India on all the grounds stated above the provisions of the Act did not apply.;

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